Brothers v. Georgia Department of Corrections et al

Filing 24

OPINION AND ORDER ADOPTING the 11 Final Report and Recommendation. This action is DISMISSED as barred by the doctrine of res judicata. IT IS FURTHER ORDERED that Plaintiff James Brothers, II's 17 Motion toWithdraw and 19 Motion For Status of Case are DENIED AS MOOT. Plaintiff's 23 Motion to Waive Court Fee is DENIED. Signed by Judge William S. Duffey, Jr on 11/8/2013. (anc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JAMES BROTHERS, II,
Plaintiff,
v.

1:13-cv-0809-WSD

GEORGIA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Russell G. Vineyard’s
Final Report and Recommendation (“R&R”) [11] and on Plaintiff James Brothers,
II, (“Plaintiff”)’s Motion to Withdraw [17], Motion For Status of Case [19], and
Motion to Waive Court Fee [23].
I.

BACKGROUND
This is the second time Plaintiff, pro se and currently incarcerated in Florida,

has brought an action against the Georgia Department of Corrections, the City of
Dallas, Georgia, and Correctional Officer Huff of the Paulding County Probation
and Detention Center (collectively, “Defendants”) based on the same events. On
October 12, 2010, Plaintiff filed a “Notice of Intent to Initiate Litigation” and an

“Affidavit of Indigency,” (collectively, the “2010 Pleadings”), that asserted various
tort claims arising out of an accident that occurred in October 2007, when Plaintiff
was part of an inmate work group in Dallas, Georgia.1 In the 2010 Pleadings,
Plaintiff alleged that he was injured by a “weed eater” when trimming a tree under
the supervision of Correctional Officer Huff. Plaintiff stated that his “Petition shall
be filed in accordance with § 1983 guidelines, under a color of lawsuit [sic],
arising from contributing [sic] negligence and joint liability, and breach of
fiduciary duties by the Defendant(s).”
After granting Plaintiff leave to proceed in forma pauperis, the Court
conducted a frivolity review pursuant to 28 U.S.C. § 1915A. Finding that
Plaintiff’s purported Section 1983 action was time-barred and that Plaintiff had
failed to state a claim under Section 1983, the Court dismissed Plaintiff’s action on
October 20, 2010. Plaintiff did not appeal.
More than a year later, on February 16, 2012, moved for relief from
judgment, arguing, inter alia, that he wished to assert a breach of contract claim
against Defendants. Plaintiff alleged that he agreed not to sue Defendants for his
weed-eater injury and that, in return, Defendants agreed to terminate his probation.
Plaintiff stated he learned in March 2010 that Defendants had breached the alleged
1

See Brothers v. Huff, No. 1:10-cv-3305-WSD (N.D. Ga. Oct. 12, 2010).

2

agreement when Plaintiff discovered that a warrant had been issued based on a
violation of Plaintiff’s probation. On February 22, 2012, the Court denied
Plaintiff’s motion for relief from judgment, and denied Plaintiff’s request to reopen the case to assert a breach of contract claim that could have been asserted in
the 2010 Pleadings.
On March 11, 2013, Plaintiff filed this action, again seeking to assert claims
against the Georgia Department of Corrections, the City of Dallas, and Huff for
injuries Plaintiff allegedly sustained in the weed-eater incident in October 2007.
Plaintiff sought leave to proceed in forma pauperis, and the Magistrate Judge
conducted a frivolity review. On May 6, 2013, the Magistrate Judge recommended
that this action be dismissed because it is barred by the doctrine of res judicata.
Plaintiff filed objections to the R&R, essentially arguing that the October 12, 2010,
action should have been permitted to proceed and that Plaintiff’s claims in this
action, because they are the same, are not barred.
II.

DISCUSSION
A.

Legal Standard on a Magistrate Judge’s R&R

After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams v.

3

Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). A
district judge “shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1). This requires that the district judge “‘give fresh
consideration to those issues to which specific objection has been made by a
party.’” Jeffrey S. by Ernest S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512
(11th Cir. 1990) (quoting H.R. Rep. No. 94-1609, 94th Cong., 2nd Sess. (1976)).
With respect to those findings and recommendations to which a party has not
asserted objections, the Court must conduct a plain error review of the record.
United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983), cert. denied, 464 U.S.
1050 (1984).
B.

Analysis
1.

Res Judicata

“Under res judicata, also known as claim preclusion, a final judgment on the
merits bars the parties to a prior action from re-litigating a cause of action that was
or could have been raised in that action.” In re Piper Aircraft Corp., 244 F.3d
1289, 1296 (11th Cir. 2001) (citing Allen v. McCurry, 449 U.S. 90, 94 (1980)).
Res judicata applies when four elements are present:
(1) the prior decision must have been rendered by a court of
competent jurisdiction;
4

(2) there must have been a final judgment on the merits;
(3) both cases must involve the same parties or their privies; and
(4) both cases must involve the same causes of action.
Id. Prior and present causes of action are the same if they arise out of the same
nucleus of operative fact or are based upon the same factual predicate. Id. at 1297.
See also Davilla v. Delta Air Lines, Inc., 326 F.3d 1183, 1187 (11th Cir. 2003).
The bar pertains “not only to claims that were raised in the prior action . . . but also
to claims that could have been raised previously.” Davila, 326 F.3d at 1187 (citing
Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d 1265, 1271 (11th Cir.2002)).
“[C]laims that ‘could have been brought’ are claims in existence at the time the
original complaint is filed or claims actually asserted by supplemental pleadings or
otherwise in the earlier action.” Manning v. City of Auburn, 953 F.2d 1355, 1360
(11th Cir. 1992) (emphasis in original).
Here, Plaintiff’s current action and his October 12, 2010, action both arise
out of the same nucleus of operative facts – Plaintiff’s alleged 2007 injuries
resulting from an accident with a weed eater – and assert claims against the same
Defendants. This Court, a court of competent jurisdiction, dismissed Plaintiff’s
October 12, 2010, case for failure to state a claim upon which relief can be granted,
which was an adjudication on the merits. “As a general proposition, dismissal of a
complaint for failure to state a claim operates as an adjudication on the merits for

5

res judicata purposes, even where the dismissal order does not specify whether
such dismissal was with prejudice or without prejudice.” Polk v. Sears, Roebuck,
& Co., 2012 WL 1640708 (S.D. Ala. May 8, 2012) (citing N.A.A. C.P. v. Hunt,
891 F.2d 1555, 1560 (11th Cir.1990) (“unless the court specifies otherwise,
dismissal on the grounds that the facts and law show no right to relief operates as
an adjudication on the merits”)). Plaintiff’s instant action thus is barred by res
judicata.
2.

Plaintiff’s objections to the R&R

Plaintiff raises four (4) objections to the R&R, none of which directly
addresses the conclusion that this action is barred by res judicata. Plaintiff seems
to believe that if the Court improperly disposed of the October 12, 2010, action,
Plaintiff is entitled to litigate these issues again. If, however, Plaintiff believed his
2010 case was improperly dismissed, Plaintiff’s recourse was to appeal the Court’s
October 20, 2010, Order. Plaintiff elected not to appeal, and his objections to the
R&R are irrelevant to the question whether Plaintiff is precluded from bringing
this action.
First, Plaintiff argues that, because his original case did not properly state a
claim under Section 1983, the Court should not have applied a statute of
limitations that applies to a Section 1983 case. The objection is without merit.

6

Plaintiff asserted a claim under Section 1983, and the Court properly held that such
a claim was time-barred. The Court also held, however, that Plaintiff had failed to
state a claim upon which relief could be granted because Section 1983 is not a
vehicle through which to assert general, garden-variety tort claims such as those
Plaintiff alleged in the 2010 Pleadings. See Paul v. Davis, 424 U.S. 693, 701
(1976). Plaintiff’s claims, brought under Section 1983, thus were required to be
dismissed regardless of whether or not they were time-barred. Plaintiff’s October
12, 2010, action was adjudicated on the merits, and Plaintiff is precluded from
bringing a second action asserting, against the same Defendants, claims arising out
of the same events.
Second, Plaintiff contends that various state-law tort claims against the
Georgia Department of Corrections, which were not time-barred in 2010, are
allowed to be asserted in federal court on the basis of diversity jurisdiction. This
objection also is without merit. Even if Plaintiff were a citizen of Florida, which
was not alleged, he did not assert diversity jurisdiction in the 2010 Pleadings.2
2

Plaintiff argues that he was a citizen of Florida at the time the 2010 Pleadings
were filed because was then incarcerated in Florida. But a prisoner does not
acquire a new domicile in the place of his imprisonment. Instead, he retains the
domicile he had prior to his incarceration. Polakoff v. Henderson, 370 F. Supp
690, 693 (N.D. Ga. 1973), aff’d, 488 F.2d 977 (5th Cir. 1974).2 See also Green v.
Corrections Corp. of America, 401 F. App’x. 371, 377 n.7 (10th Cir. 2010); accord
Hall v. Curran, 599 F.3d 70, 72 (1st Cir. 2010).
7

Plaintiff stated only his intention to assert an action under Section 1983.
“[D]istrict courts cannot concoct or resurrect arguments neither made nor advanced
by the parties.” Fils v. City of Aventura, 647 F.3d 1272, 1284 (11th Cir.2011).
See also Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th
Cir.1995) (“There is no burden upon the district court to distill every potential
argument that could be made based upon the materials before it. . . .”). Plaintiff’s
election, in 2010, not to assert all claims arising out of the same set of events does
not avoid the Court’s finding of res judicata, which applies not only to issues
actually decided, but also to all claims that could have been raised, but were not.
Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d 1498, 1503 (11th Cir.1990)).
Third, Plaintiff argues that he asserted a claim for breach of contract in the
2010 Pleadings and that the Court should have permitted that claim to proceed. In
the 2010 Pleadings, Plaintiff listed as one of his claims against Defendants the
following: “Breach of Defendant(s) fiduciary duties to Plaintiffs as deprivation
under color of law.” Plaintiff argues that the Court should have interpreted
“breach of fiduciary duty” as a claim for “breach of contract.”3 The Court does not
interpret this claim as an independent cause of action for breach of contract
3

Plaintiff notes that “‘Fiduciary’ is defined by American Dictionary as ‘Involving
a confidence or trust held or holding in trust for another,’ such as a fiduciary
contract.’” (Pff.’s Objections to the R&R at 5.)

8

because the reference to a “deprivation under color of law” plainly indicates
Plaintiff’s claim was brought under Section 1983.4 Plaintiff did not properly assert
a breach of contract claim until February 16, 2012, more than a year after judgment
was entered in the October 12, 2010, action.5
Fourth, Plaintiff contends that his instant action asserts a claim for medical
malpractice which is not barred by res judicata because the statute of limitations
for medical malpractice claims is two years. Plaintiff misunderstands how res
judicata operates. Plaintiff’s claims are barred not because the statute of
limitations has run, but because all of Plaintiff’s claims against Defendants arising
out of Plaintiff’s alleged 2007 injury are treated by the law as having been litigated
in the October 12, 2010, action. Plaintiff in fact asserted a claim for medical
malpractice in the 2010 action, and Plaintiff is not permitted to assert the same

4

42 U.S.C. § 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress . . . .
5

Plaintiff also argues that he did not actually become aware of his breach of
contract claim until August 2012. This is belied by his February 16, 2012,
submission in which he requested leave to assert a claim for breach of contract.

9

claim against Defendants in this action.
Having considered Plaintiff’s objections to the R&R, the Court overrules
each of them. Finding no error with the remainder of the R&R, the Court
concludes this action is required to be dismissed because it is barred by the
doctrine of res judicata.
C.

Motion to Waive Court Fee

When Plaintiff was granted leave to proceed in forma pauperis, he
authorized ongoing deductions from his prisoner account to pay the required $350
filing fee. Plaintiff moves to terminate these deductions because: (i) the instant
action is not brought under Section 1983 and (ii) Plaintiff is suffering from a
medical condition, the treatment for which costs $5.00 a month. Plaintiff states
that the filing-fee debits are having a significant adverse impact. Plaintiff also
moves for a reimbursement of the fees that previously were debited from his
account. These debits total $21.60, as of September 27, 2013.
The Prison Litigation Reform Act of 1995 (“PLRA”) requires that a prisoner
bringing a civil action in forma pauperis must pay the full filing fee. 28 U.S.C.A.
§ 1915(b)(1); Hubbard v. Haley, 262 F.3d 1194, 1195 (11th Cir. 2001). Plaintiff is
required to pay the $350 filing fee regardless of the statute under which this action
was brought. “The Congressional purpose in promulgating the PLRA enforces an

10

interpretation that each prisoner pay the full filing fee.” Hubbard, 262 F.3d at 1195
(citing 141 Cong. Rec. S7526 (daily ed. May 25, 1995) (statement of Sen. Kyl)
(“Section 2 will require prisoners to pay a very small share of the large burden they
place on the federal judicial system by paying a small filing fee upon
commencement of lawsuits. In doing so, the provision will deter frivolous inmate
lawsuits. The modest monetary outlay will force prisoners to think twice about the
case and not just file reflexively.”)). Plaintiff objects to paying a statutorily
required fee that is required to be paid, and as a result, and Plaintiff’s motion to
waive the fee is denied.
The Court also notes that the PLRA provides that payment be taken from a
prisoner’s account only when the amount in the account exceeds $10. 28 U.S.C.
§ 1915(b)(2) (“The agency having custody of the prisoner shall forward payments
from the prisoner’s account to the clerk of the court each time the amount in the
account exceeds $10 until the filing fees are paid.”). This ensures that inmates
need not “totally deprive themselves of those small amenities of life which they are
permitted to acquire in a prison or mental hospital beyond the food, clothing, and
lodging already furnished by the state.” Roller v. Gunn, 107 F.3d 227, 233 (4th
Cir.1997), cert. denied, 522 U.S. 874 (1997) (citation omitted).

11

III.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Russell G. Vineyard’s

Final Report and Recommendation [11] is ADOPTED. This action is
DISMISSED as barred by the doctrine of res judicata.
IT IS FURTHER ORDERED that Plaintiff James Brothers, II’s Motion to
Withdraw [17] is DENIED AS MOOT.
IT IS FURTHER ORDERED that Plaintiff’s Motion For Status of Case
[19] is DENIED AS MOOT.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Waive Court Fee
[23] is DENIED.

SO ORDERED this 8th day of November 2013.

12